Citation NR: 9705041
Decision Date: 02/14/97 Archive Date: 02/19/97
DOCKET NO. 95-12 067 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manchester,
New Hampshire
THE ISSUE
Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for a
right hand injury
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
C.C. Bruu, Associate Counsel
INTRODUCTION
The veteran served on active duty from October 1961 to August
1962.
This appeal comes to the Board of Veterans’ Appeals (Board)
from a March 1995 rating decision by the Manchester, New
Hampshire Regional Office (RO) of the Department of Veterans
Affairs (VA) wherein the RO denied a request to reopen the
veteran’s claim for service connection for a right hand
injury.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends new and material evidence has been
submitted sufficient to reopen his claim for service
connection for a right hand injury.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that new and material evidence has
not been submitted and the claim for service connection for a
right hand injury should not be reopened.
FINDINGS OF FACT
1. A September 1972 denial of entitlement to service
connection for a right hand injury became final absent a
timely appeal.
2. No evidence which would raise a reasonable possibility of
changing the outcome has been associated with the claim
folder since the last final decision.
CONCLUSION OF LAW
The evidence submitted since the final September 1972 denial
of service connection for a right hand injury is not new and
material; thus, the claim of service connection may not be
reopened. 38 U.S.C.A. §§ 1110, 5107, 5108, 7104, (West 1991 &
Supp. 1996); 38 C.F.R. § 3.156(a) (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Background
The veteran’s service medical records indicate no
abnormalities upon entrance into the service in October 1961.
Subsequent service medical records show just one instance of
treatment for a right hand injury, a radiographic report of
January 24, 1962, reporting no evidence of fracture of the
right hand. The veteran’s final separation examination in
July 1962 is completely normal except for a scar of the left
knee.
The veteran first filed his claim for service connection in
August 1972. A September 1972 rating decision denied service
connection citing a lack of evidence of any residuals of
injury to the right hand in the service medical records. He
was apprised of this decision, as well as his appellate
rights.
A March 1993 request to reopen was denied in a September 1993
rating decision on the basis that no evidence of any kind was
submitted, despite the RO’s request.
A second request to reopen was filed in February 1995.
Included with the request were the following two pieces of
newly submitted evidence: report of Paula Mahon, M.D., dated
November 9, 1994, stating that she saw the veteran and his
right hand functioned well with good sensation and strength
and there may be some mild swelling along the dorsal aspect
of the hand; statement of Robert B. Sullivan dated January 7,
1995, stating he served with the veteran, observed the
veteran’s pain and swelling of the right hand, and the injury
occurred during a night mission. Nonetheless, the request to
reopen was denied in March 1995 on the basis that the report
failed to establish that the veteran’s right hand injury in
1962 was the cause of the swelling described on the report in
November 1994, and the statement attests to a fact already
established by the service medical records, namely that the
veteran had some injury in 1962.
At his hearing in June 1995 the veteran testified he injured
his right hand in service when his hand struck the handle and
lock of a locker when he was hurrying to answer a whistle for
a night mission. He testified that the next morning he went
to a hospital where an x-ray was taken and his hand was
wrapped. He did not seek any further treatment for his right
hand while in service and he was discharged in August 1962
(seven months later). He did not remember seeing Dr. Berube,
the physician he listed on his application in 1972, but
stated he must have if he listed it on that application. He
did not indicate any other post service doctors but stated he
has had continuous pain and currently restricts his
activities with the right hand.
The hearing officer ordered a VA exam and same was conducted
later in June 1995. The examining physician found various
problems associated with the right hand, including swelling,
tenderness and weakness but stated specifically that there is
no relationship between the service injury in 1962 and the
present disorder, diagnosed as gout of the hands and wrists.
Analysis
As noted above, the RO denied the veteran’s claim for service
connection for a right hand injury in September 1972, and the
veteran did not appeal the determination. Under applicable
law and VA regulations, that decision is final, and the
veteran’s claim may not be reopened and reviewed unless new
and material evidence is submitted by or on behalf of the
veteran. 38 U.S.C.A. § § 5108, 7105; 38 C.F.R. § § 3.104(a),
3.156.
The Board must perform a two-step analysis when the veteran
seeks to reopen a claim based on new evidence. First, the
Board must determine whether the evidence is “new and
material.” Second, if the Board determines that the evidence
is new and material, the claim is reopened and the Board must
evaluate the merits of the veteran’s claim in light of all
the evidence, both old and new. Manio v. Derwinski, 1
Vet.App. 144 (1991).
New evidence is that which is not merely cumulative of other
evidence of record. Material evidence is that which is
relevant and probative of the issue at hand and which
(assuming its credibility) must be of sufficient weight or
significance that there is a reasonable possibility that the
new evidence when viewed in the context of all the evidence,
both new and old, would change the outcome. Sklar v. Brown,
5 Vet.App. 140 (1993); Cox v. Brown, 5 Vet.App. 95 (1993);
Justus v. Principi, 3 Vet.App. 510 (1992). The Court has
also held that the Board is required to review all of the
evidence submitted by a claimant since the last final denial
of a claim on any basis, to include decisions by the RO or
the Board who had refused, because of a lack of new and
material evidence, to reopen a previously and finally
disallowed claim, after having considered newly presented
evidence. Evans v. Brown, 9 Vet.App. 273, 285 (1996).
Since the veteran’s claim was considered by the RO in
September 1972, two new pieces of evidence have been
submitted, the veteran has testified at a hearing, and the VA
has examined the veteran. The August 1972 claim was denied
because the evidence reviewed, the veteran’s service medical
records, did not establish any residuals of an injury to the
right hand. The first newly submitted piece of evidence, the
report of Paula Mahon, M.D., is new but not material because
there is not a reasonable possibility that it could change
the outcome. The doctor reports swelling but does not relate
the swelling to an injury in service. Therefore the report
does not add to the veteran’s claim. Dr. Mahon’s report does
not show residuals of a right hand injury in service. The
second piece of newly submitted evidence, the statement of
Robert B. Sullivan, is not new and material because it is
cumulative evidence only of the fact that the veteran
sustained some type of injury while in service. Similarly,
the veteran’s testimony at a hearing is cumulative evidence
only of the fact that he hurt his hand in service. While the
veteran also testified that he has had continuous pain, this
is not competent evidence of a nexus between the injury in
service and any current disability. Competent evidence of a
nexus is medical evidence. Caluza v. Brown, 7 Vet.App. 498
(1995). Finally, the VA exam is new but not material because
not only is there no reasonable possibility it could change
the outcome, but the examining doctor gives the specific
opinion that there is no relationship between the injury in
1962 and the present disorder, gout, which, incidentally,
involves both hands and wrists. Therefore, the Board finds
that no evidence has been submitted such as would raise a
reasonable possibility of changing the outcome of the 1972
denial.
ORDER
No new and material evidence having been submitted to reopen
a claim of entitlement to service connection for a right hand
injury, the request to reopen is denied.
N. R. ROBIN
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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